State Senators approve key bills in preparation to adjourn 2012 legislative session

(NASHVILLE, TN), April 20, 2012 –  As the Tennessee Legislature prepared to enter the final week of the 107th General Assembly, state senators acted on a wide variety of important bills, including a measure calling for drug testing for welfare applicants, a bill to curb domestic violence and two resolutions giving citizens the opportunity to vote on how the state’s appellate judges are selected. State Senators also voted to ensure the transferability of dual credit courses for high school students when they enroll in college and to prevent K-12 schools from discriminating against a student based on a religious viewpoint. 

Meanwhile members of the Senate Finance Committee worked tirelessly to find common ground on the budget for the 2012-2013 fiscal year that will begin on July 1.  The remainder of the 2012 legislative session will be predominantly focused on bills which have a fiscal impact on the state’s budget.   Tennessee is constitutionally bound to balance the budget.  The Finance Committees in the House and the Senate reviewed legislation this week calling for additional appropriations to the financial package under consideration as lawmakers set priorities for inclusion in the budget.

Among key financial bills still awaiting final action in conjunction with passage of the budget is Senate Bill 3763, sponsored by Senate Majority Leader Mark Norris (R-Collierville), to reduce the state portion of the sales tax on grocery food from 5.5 percent to 5.25 percent, with the goal of lowering it to 5.0 percent in three years.  Similarly, Senate Bill 3762, sponsored by Leader Norris, will be considered which would take the first step in a four-year process to phase out the state’s inheritance tax, also called the “death tax.”  The tax cut bills, which have been a priority of Republican lawmakers for many years, are included in Governor Bill Haslam’s budget proposal.   

Drug Test / Welfare Recipients – In major action this week, the Senate Finance Committee voted 8 to 3 in favor of legislation which calls for drug testing for welfare applicants.  The bill would apply to testing for illegal use of marijuana, cocaine, methamphetamine, amphetamine and opiates such as morphine, with the possibility that other drugs could be added later by rules set forth under the bill.  Senate Bill 2580, sponsored by Senator Stacey Campfield (R-Knoxville), applies to adult recipients of the Temporary Assistance to Needy Families (TANF) program. 

“Under the federal Welfare Reform Act passed in 1996, states were authorized to conduct drug testing for TANF recipients,” said Senator Campfield.  “The bill does not affect aid provided to children under the program.”

The implementation would occur in phases over a two-year period under the bill, with status reports regarding the matter being sent to the General Health and Welfare Committees in the legislature on a quarterly basis.  It calls for the Department of Human Services to develop appropriate screening techniques and processes to establish reasonable cause that an applicant for TANF is using a drug illegally.  The applicant could then be required to undergo a urine-based drug test to be conducted by a drug testing agency.  If the applicant tests positive, the drug test would have to be verified by a confirmation test before TANF benefits could be denied.  No drug for which an applicant has a current valid prescription could be used as a basis for denial of benefits. 

The drug testing plan would also include a referral process for any applicant who tests positive to be referred to an appropriate treatment resource for drug abuse.  If the applicant is otherwise eligible during the treatment period, he or she can receive TANF benefits during the treatment period for up to six months.  If the applicant refuses treatment, he or she would be disqualified.  After six months of disqualification, the applicant can reapply, but upon testing positive again he or she would become ineligible for one year.

Curbing Domestic Violence — Legislation which strengthens penalties for domestic violence overcame a major hurdle this week with passage by the Senate Finance Committee.  The “Repeat Domestic Violence Offender” bill, sponsored by Senator Doug Overbey (R-Maryville), prescribes mandatory jail time and enhanced fines for repeat offenders.

“This bill prescribes mandatory jail time for those who commit the despicable act of domestic assault,” said Senator Overbey.  “It aims to curb the growing problem of domestic violence in Tennessee.”

Tennessee is ranked fifth in the nation for women murdered by men as a result of domestic violence. 

Senate Bill 2251 provides at least 30 days in jail and a fine ranging from $350 to $3,500 for those convicted of a second offense for domestic violence when bodily injury occurs.  Upon third or a subsequent conviction, the mandatory jail time would increase to 90 days and a fine ranging from $1,000 to $5,000.  In counting prior convictions, the bill provides for a ten-year look back provision similar to the one used in the state’s drunk driving law.

The bill is part of a public safety package presented to the legislature by  Governor Bill Haslam.  It was recommended by a Public Safety Subcabinet Working Group composed of more than 10 government agencies which held meetings with over 300 leaders in law enforcement.  

Resolutions / Appellate Judges — The State Senate voted to approve on third and final reading a resolution that would allow Tennesseans to vote on whether or not they want to use a merit-based appointment system for selecting the state’s Supreme Court and intermediate appellate judges, followed by a retention vote of the people.  Senate Joint Resolution 183, sponsored by Senate Majority Leader Mark Norris (R-Collierville), provides that as an alternative to contested elections, the legislature is authorized to establish in the law a system of merit-based appointments with retention elections for judges of the Supreme Court and the intermediate appellate courts.  Senate Joint Resolution 710, sponsored by Senator Brian Kelsey (R-Germantown), was also read on second reading.  It calls for appointment of state appellate judges in a manner similar to the federal model by allowing Tennessee’s Governor to appoint judges to the Supreme Court and state appellate courts, subject to confirmation by the General Assembly, for eight year terms.

The action follows an announcement made earlier this year by Governor Bill Haslam, Lt. Governor Ron Ramsey (R-Blountville) and House Speaker Beth Harwell (R-Nashville) that legislative action is needed under the present system for selecting appellate judges in order to be constitutionally correct.  Article VI, Section 3 of Tennessee’s Constitution requires that Supreme Court justices “shall be elected by the qualified voters of the state,” which concerns many lawmakers who believe the current system does not fully satisfy that mandate.  The changes set out in both resolutions would only go into effect if the Constitution is amended by a vote of the people.  The resolution must be approved by a simple majority of the legislature this year after three readings and must receive a two-thirds majority of both chambers in the following General Assembly.  Then it would go to a vote of the people in 2014.

Dual Credit Courses – A bill to ensure students will receive college credit for dual credit courses that they complete successfully in high school was approved by the Senate Finance Committee.  Dual credit is a type of college credit by assessment that occurs when a high school student passes a course that has been created in collaboration with a higher education institution.  The student then takes a test to prove their proficiency.   

“Dual credit courses allow high school students to receive college credit for certain courses with a more rigorous college level curriculum,” said Senator Jim Tracy (R-Shelbyville), sponsor of the bill.  “These courses are becoming more common in Tennessee high schools and are exceptional tools in preparing and encouraging high school students to attend college.  However, we have a lot of students out there that have not been able to get the credit in college because of the transferability issue.”

 Senate Bill 2809 would require public postsecondary institutions to accept for credit any dual credit course developed by another public postsecondary institution in collaboration with a high school if the student passes the course and a college proficiency test.  The legislation specifies credit would only be provided when the student enrolls in college. 

“Dual credit gets high school students ready for the college experience while they are still in high school,” Tracy added. “It dovetails with our high school diploma project and increases retention and graduation rates for students.  I am pleased this bill has passed.”

Religious Expression in Public Schools – Action on the Senate floor this week included final approval of Senate Bill 3632 that would prevent a Local Education Agency (LEA) from discriminating against a student based on a religious viewpoint expressed by the student on an otherwise permissible subject.   The legislation, sponsored by Senator Kerry Roberts (R-Springfield), requires an LEA to treat a student’s voluntary expression of a religious viewpoint the same as they would treat a voluntary expression of a secular viewpoint. 

 “Suppose a student was given an assignment to write about cause of America’s economic decline,” said Senator Roberts.  “One student might choose to write about it from a political, economic or military standpoint, but another may wish to write that paper from a religious standpoint drawing parallels between the decline of Israel during the Babylonian Empire and America today.  Under this bill, that academic exercise would have to be judged on its merit, not on the paradigm from which the student approaches the topic.”

The bill would also allow students to organize a student prayer group, religious clubs or other religious gathering to the same extent that other non-curricular groups organize.  Those religious groups would be given the same access to school facilities for assembly and the same opportunities to advertise such meetings as given to other non-curricula groups. In addition, the bill would allow a student to express religious beliefs in homework, artwork and other school-related assignments free from discrimination.

“The student would not be penalized or rewarded based on the religious content of the student’s work,” Roberts added.

Finally, the measure requires an LEA to adopt a policy that includes the establishment of a limited public forum for student speakers at any school event at which a student is to publicly speak and a policy regarding voluntary student expression, among other provisions.  The provisions of the legislation would begin in the 2013-2014 school year.

Lottery Scholarships — The full Senate has approved Senate Bill 2514 which ties changes proposed by the Lottery Scholarship Stabilization Task Force to continued lottery revenue growth to ensure stability of the fund for future generations of Tennessee students.  The legislation, sponsored by Senate Education Committee Chairman Dolores Gresham (R-Somerville), was filed after a recommendation from the bi-partisan Task Force comprised State Senators; the state’s top higher education officials from the Board of Regents, the University of Tennessee, the Tennessee Higher Education Commission, and the Tennessee Independent Colleges and Universities Association; as well as Tennessee’s two top financial experts, the State Comptroller and State Treasurer; and the Secretary of State.

The total costs of the scholarship program have outstripped lottery revenues (which is the net proceeds from the lottery games played plus interest from the lottery reserves) for the past several years.   As a result, Tennessee has dipped into reserves to keep the promises made to students receiving funds through the state’s HOPE Scholarship program.

The proposed changes in scholarship eligibility requirements for students attending four year institutions will not be implemented if the Lottery Corporation sustains the $10 million growth projected by Lottery Corp. CEO Rebecca Paul through the spring of 2015.  If revenues fall below that level at that time, the legislation would require students who attend a four-year institution to meet both the ACT and grade point average (GPA) requirements to receive the full lottery scholarship award beginning in the fall semester in 2015.  The students meeting only one requirement would receive a two-year college grant and would be eligible for the full award by year three if they meet grade requirements.  If provisions in the bill are enacted, the legislation would also provide 5,600 more recipients an opportunity to receive scholarship funding provided through the Tennessee Student Assistant Award (TSAA).  Those grants would be available to non-traditional students of any age, including laid-off workers and other students. 

No current scholarship recipient or any high school student working towards a lottery scholarship would be affected by the bill, regardless of whether or not lottery revenues decline.  The legislation would begin with students currently enrolled in the 8th grade who would only be affected if a downturn in lottery revenue occurs, triggering the stabilization provisions.

Likewise, the State Senate approved Senate Bill 2515 recommended by the bi-partisan Task Force that would require the general lottery subaccount to be maintained at $100 million instead of $50 million. A “red flag” would be brought up if the subaccount reaches the $100 million dollar amount. If the subaccount drops below the $50 million threshold, the bill would require five percent of the lottery revenues to be placed into the subaccount until it is brought back to a balance of $50 million. It also requires the comptroller to make an annual report on the adequacy of the reserves to ensure stability of the fund for students in the future. 

DUI – Two bills passed this week which aim to curb drunk driving.  One bill clarifies that Tennessee’s DUI law includes offenders driving under the influence of prescription drugs, while the other measure requires blood alcohol testing or a breath sample for a suspected drunk driver if a court order or search warrant is issued.

“Both of these bills would curb drunk driving by ensuring that offenders cannot skirt prosecution,” said Senator Doug Overbey (R-Maryville), sponsor of the proposals.  “Those who drink and drive or take intoxicating substances and get behind the wheel of a car must be accountable for their actions.” 

Under present law, a person is charged with violating the state’s “implied consent” law if they refuse to be tested.  A person violating the implied consent law gives up the right to drive, unless they are being charged for the first time in which an exception can be made for travel to and from work, for a period of one year.  This applies even if the suspect is found not guilty.  The Tennessee Department of Safety and Homeland Security reported 2,241 drivers were convicted for rejecting the tests during the last one-year reporting period. 

Senate Bill 2914 clarifies that the provision regarding not administering the blood alcohol content (BAC) test if the person refuses to submit does not apply if testing is mandated by a court order or search warrant.  The law also applies to testing mandated if a law enforcement officer has probable cause to believe that the driver of a motor vehicle involved in an accident resulting in the injury or death of another is driving under the influence of drugs or alcohol. 
 
In addition, the State Senate approved Senate Bill 2915, which brings clarity to Tennessee’s law regarding driving while under the influence of prescription drugs.  The legislation ensures that state law does not provide an excuse or a defense for offenders who do not have physical control of their vehicles due to them being under the influence of an intoxicant drug prescribed lawfully. 

The Department of Safety reported a total of 22,119 DUI convictions during the last one-year reporting period. 

“There are far too many drunk drivers on our streets,” added Overbey.  “I am very pleased that our General Assembly has approved this legislation.”

Both bills now go to Governor Bill Haslam for his signature.

Issues in Brief

Change in method to select state’s Attorney General — Legislation sponsored by Senate Judiciary Committee Chairman Mae Beavers (R-Mt. Juliet) that would allow Tennessee’s Governor to appoint the State Attorney General was approved by the Senate Finance Committee on Tuesday and was read on the first and second of three readings before the full State Senate this week.  Senate Joint Resolution 693 would amend the state’s Constitution to allow the Governor to appoint the Attorney General for a six-year term subject to legislative confirmation.  Tennessee is the only state in the nation that allows the State Supreme Court to select the attorney general.  Other states either call for popular election or the Attorney General is selected by either the popularly elected Governor or the state legislature. 

Unemployment Insurance Reform – Legislation that would give job creators some much-needed certainly for unemployment rules advanced this week through the Senate Finance Committee. The bill revises certain provisions such as misconduct rules by individuals seeking unemployment benefits. Moreover, Senate bill 3658, sponsored by Senator Jack Johnson (R-Franklin), specifies that “making a reasonable effort to secure work” means a claimant must provide detailed information regarding contact with at least three employers per week or must access services at a career center created by the Department.

Unemployment Insurance / Seasonal Workers – Similarly, Senate Finance Committee members approved Senate Bill 3657, sponsored by Senator Johnson, which establishes qualifications and criteria for  determining benefit amounts paid to seasonal employees. The bill allows an employer to qualify as a “seasonal employer” for purposes of unemployment insurance benefits, and establishes the benefits an employee of a seasonal
worker will receive beginning in 2016.

Alcohol / Underage Drinking — The Senate passed and sent to the Governor legislation to make it a Class C misdemeanor offense for a visibly intoxicated person between the ages of 18 and 21 to go into a retail package store knowing that intoxicating liquors are sold there and not leave the premises when asked to do so by the owner or an employee of the establishment.  Senate Bill 2544, sponsored by Senator Becky Duncan Massey (R-Knoxville), would also make it a delinquent act for a minor to knowingly go into a retail package store and remain on the premises despite being asked to leave.

Synthetic Drugs — Senate Bill 3018 which defines synthetic drugs in a manner in which unscrupulous manufacturers cannot skirt the law to avoid prosecution is one step closer to passage after Finance Committee members voted to approve it.  The bill, sponsored by Senate Judiciary Chairman Mae Beavers (R-Mt. Juliet), defines synthetic drugs to capture any analogues, which are chemical compounds having a similar structure to the banned drug.  This legislation creates a new Class D felony offense for a person to knowingly manufacture, deliver, dispense or sell a controlled substance analogue.  The proposal elevates penalties upon a second or subsequent violation to a Class C felony.  If the violation involves the delivery, dispensing or sale of a controlled substance analogue to a minor, the offender will be punished one classification higher than the punishment for delivering, dispensing or selling to an adult.  The bill also creates a new Class A misdemeanor offense for a person knowingly to possess or casually exchange under a gram of a controlled substance analogue.

Sex Offenders / DNA – The Senate Finance Committee voted this week to approve Senate Bill 2922, sponsored by Senator Doug Overbey (R-Maryville), which provides for a procedure to ensure law enforcement has a DNA sample for a sex offender when that person is on the Registry but is not incarcerated.

Sex Offenders / Indecent Exposure — Senate Bill 3076, sponsored by Senator Jack Johnson (R-Franklin), was approved by the full Senate on Wednesday.  The bill revises the punishment for the offenses of public indecency and indecent exposure.  It specifies that indecent exposure would be a Class E felony if the defendant is 18 years of age or older and the victim is under 13 years of age and the offense occurs on the property of any public school, private or parochial school, licensed day care center or other child care facility during a time at which children are likely to be present.  It also provides that if a person is charged with such Class E felony offense and the court grants judicial diversion, the court must order, as a condition of probation, that the person be enrolled in a satellite-based monitoring program for the full extent of the person’s term of probation in a manner consistent with the requirements of the Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act.

Sex Offenders / Registration – Legislation, sponsored by Senator Kerry Roberts (R-Springfield), was passed unanimously by the Senate on Monday.  The bill calls for judicial forfeiture of a registered sex offender’s automobile if he or she is found to be in violation of the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act.  Senate Bill 3635 would allow judges to consider forfeiture when the registered offender violates the terms of the Registry Act by being at a day care, school or other places in which he or she is banned.

Tennessee Regulatory Authority — Legislation reconstituting the Tennessee Regulatory Authority (TRA) which regulates utilities across the state advanced through the Senate Finance Committee this week.  The TRA is currently governed by four full-time members, called directors, with salaries of $152,000 per year. Senate Bill 2247, sponsored by Senator Mark Norris (R-Collierville) and Senator Mike Faulk (R-Church Hill), would replace them with five part-time members who are paid $36,000 and a full-time executive director to manage the agency’s day to day operations.  The proposal for part-time directors follows deregulation of many industries previously governed by the TRA, including the trucking and phone industries and most electric utilities.  The TRA does not regulate the Tennessee Valley Authority (TVA) or other utilities owned by local government.  As a result, only 19 rate cases have come before the agency since 2003.  The legislation also follows a comptroller report which showed the TRA needs a better management structure to optimize functions of the agency.
 
Schools / Extracurricular Activities — State Senators approved Senate Bill 2488 this week calling for local education agencies to put the names of all clubs or school-associated extracurricular activities and their purpose in the student handbook.  The bill, sponsored by Senator Dolores Gresham (R-Somerville), would give parents the opportunity to prohibit membership through written notice to the school.

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